TITLE 24

Professions and Occupations

CHAPTER 17. MEDICAL PRACTICE ACT

Subchapter IV. Disciplinary Regulation; Proceedings of the Board


(a) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board if that person is treating professionally another person who possesses a certificate to practice medicine for a condition defined in § 1731(c) of this title, if, in the reporting person's opinion, the person being treated may be unable to practice medicine with reasonable skill or safety. The reporting person shall provide the Board with a written report which includes the name and address of the person being treated, the exact condition being treated, and the reporting person's opinion of whether or not action should be taken under § 1731 of this title. A person reporting to the Board or testifying in any proceeding as a result of making a report pursuant to this section is immune from claim, suit, liability, damages, or any other recourse, civil or criminal, so long as the person acted in good faith and without gross or wanton negligence; good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.

(b)(1) Every person to whom a certificate to practice medicine is issued and health care facility as defined in § 1740 of this title has a duty to report to the Board within 30 days:

a. Any partial or full removal of hospital privileges based on adverse events, unprofessional conduct or competency issues; and

b. Any disciplinary action taken by a medical society against that person; and

c. Any reasonably substantiated incidents involving violence, threat of violence, abuse, or neglect by a person toward any other person.

(2) Every person certified to practice medicine in this State shall report to the Board within 30 days any civil or criminal investigation in any jurisdiction which concerns that person's certification or license or other authorization to practice medicine. The Board may require an applicant to provide sufficient documentation to enable the Board to determine whether to investigate, pursuant to § 1732 of this title, or whether there are grounds for discipline under § 1731(b) of this title.

(c) Every person to whom a certificate to practice medicine is issued has a duty to report to the Board, within 60 days, all information concerning medical malpractice claims settled or adjudicated to final judgment, as provided in Chapter 68 of Title 18, and, within 30 days, all information required to be reported under § 1731A(f) of this title.

(d) Every person to whom a certificate to practice medicine is issued has a duty to report, within 30 days of the day each such person becomes aware, of the existence of a report to the Department of Services for Children, Youth and Their Families under Chapter 9 of Title 16 against that person concerning child abuse or neglect or a report to the Division of Long-Term Care Residents Protection under Chapter 85 of Title 11 against that person concerning adult abuse, neglect, mistreatment, or financial exploitation.

60 Del. Laws, c. 462, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 8, 9; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 320, § 9; 77 Del. Laws, c. 325, § 1; 77 Del. Laws, c. 460, § 2; 78 Del. Laws, c. 101, § 1.;

(a) A person to whom a certificate to practice medicine in this State has been issued may be disciplined by the Board for unprofessional conduct, as defined in subsection (b) of this section, by means of levying a fine, or by the restriction, suspension, or revocation, either permanent or temporary, of that person's certificate to practice medicine, or by other appropriate action, which may include a requirement that a person who is disciplined must complete specified continuing education courses. The Board shall permanently revoke the certificate to practice medicine in this State of a person who is convicted of a felony sexual offense.

(b) "Unprofessional conduct" includes but is not limited to any of the following acts or omissions:

(1) The use of any false, fraudulent, or forged statement or document or the use of any fraudulent, deceitful, dishonest, or unethical practice in connection with a certification, registration, or licensing requirement of this chapter, or in connection with the practice of medicine or other profession or occupation regulated under this chapter;

(2) Conduct that would constitute a crime substantially related to the practice of medicine;

(3) Any dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the public;

(4) The practice of medicine or other profession or occupation regulated under this chapter under a false or assumed name;

(5) The practice of medicine or other profession or occupation regulated under this chapter without a certificate or other authorizing document or renewal of such document, unless otherwise authorized by this chapter;

(6) The use, distribution, or issuance of a prescription for a dangerous or narcotic drug, other than for therapeutic or diagnostic purposes;

(7) Advertising of the practice of medicine or other profession or occupation regulated under this chapter in an unethical or unprofessional manner;

(8) Solicitation or acceptance of a fee from a patient or other person by fraudulent representation that a manifestly incurable condition, as determined with reasonable medical certainty, can be permanently cured;

(9) Knowing or intentional performance of an act which, unless authorized by this chapter, assists an unauthorized person to practice medicine or other profession or occupation regulated under this chapter;

(10) The failure to provide adequate supervision to an individual working under the supervision of a person who is certified and registered to practice medicine;

(11) Misconduct, including but not limited to sexual misconduct, incompetence, or gross negligence or pattern of negligence in the practice of medicine or other profession or occupation regulated under this chapter;

(12) Wilful violation of the confidential relationship with or confidential communications of a patient;

(13) Wilful failure to report to the Board as required by § 1730(a) of this title;

(14) Wilful failure to report to the Board as required by § 1730(b) of this title;

(15) Wilful failure to report to the Board as required by § 1730(c) of this title;

(16) Unjustified failure upon request to divulge information relevant to the authorization or competence of a person to practice medicine or other profession or occupation regulated under this chapter to the Board, to any committee thereof, to the Executive Director, or to anyone designated by the Executive Director to request such information;

(17) The violation of a provision of this chapter or the violation of an order or regulation of the Board related to medical procedures or to the procedures of other professions or occupations regulated under this chapter, the violation of which more probably than not will harm or injure the public or an individual;

(18) Charging a grossly exorbitant fee for professional or occupational services rendered;

(19) Suspension or revocation of a certificate to practice medicine or of the authorizing document to practice another profession or occupation regulated under this chapter, or other disciplinary action taken by the regulatory authority in another state or territory. In making its determination, the Board may rely upon decisions made by the appropriate authorities in other states and may not permit a collateral attack on those decisions;

(20) Signing the death certificate of a person prior to the actual time of death of the person;

(21) A violation of § 1764A of this title;

(22) Wilful failure to report to the Board when required by § 1731A of this title; and

(23) Wilful failure to comply with § 1769B of this title.

(c) A certificate to practice medicine or an authorizing document to practice another profession or occupation regulated under this chapter is subject to restriction, suspension, or revocation, either temporarily or permanently, in case of the inability of the holder to practice medicine or other profession or occupation with reasonable skill or safety to patients by reason of 1 or more of the following:

(1) Mental illness or mental incompetence;

(2) Physical illness, including, but not limited to, deterioration through the aging process or loss of motor skill;

(3) Excessive use or abuse of drugs, including alcohol.

(d) The Board may establish, by class and not by individual, requirements for continuing education and/or reexamination as a condition for renewal of registration and for recertification to practice medicine or other profession or occupation regulated under this chapter, or as a condition to continue to practice medicine or other profession or occupation regulated under this chapter after disciplinary sanctions are imposed or after inability to practice with reasonable skill or safety to patients has been determined.

(e) A person who files a complaint with the Board or any of its members, the Executive Director, or the Division, or who provides information to the Board or any of its members, the Executive Director, or the Division regarding a complaint, or who testifies as a witness at a hearing before the Board or any of its hearing panels or committees concerning unprofessional conduct by a person certified to practice medicine or other profession or occupation regulated under this chapter in this State or concerning the inability of a person certified to practice medicine or other profession or occupation regulated under this chapter for the reasons set forth in subsection (c) of this section, may not be held liable in any cause of action arising out of the filing of the complaint, the providing of information, or the giving of testimony, provided that the person does so in good faith and without gross or wanton negligence.

(f) The provisions of this section apply to any person to whom a certificate, license, or other authorizing document to practice a profession or occupation has been issued pursuant to this chapter.

60 Del. Laws, c. 462, § 1; 62 Del. Laws, c. 90, § 3; 63 Del. Laws, c. 252, § 1; 64 Del. Laws, c. 477, § 4; 67 Del. Laws, c. 226, §§ 10, 11; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 12-14; 74 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 262, § 30; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 161, § 3; 77 Del. Laws, c. 322, § 1; 77 Del. Laws, c. 325, §§ 3-6.;

(a) Any person may report to the Board information that the reporting person reasonably believes indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness, including deterioration through the aging process or loss of motor skill; or excessive use or abuse of drugs, including alcohol. The following have an affirmative duty to report, and must report, such information to the Board in writing within 30 days of becoming aware of the information:

(1) All persons certified to practice medicine under this chapter;

(2) All certified, registered, or licensed healthcare providers;

(3) The Medical Society of Delaware;

(4) All healthcare institutions in the State;

(5) All state agencies other than law-enforcement agencies;

(6) All law-enforcement agencies in the State, except that such agencies are required to report only new or pending investigations of alleged criminal conduct specified in § 1731(b)(2) of this title, and are further required to report within 30 days of the close of a criminal investigation or the arrest of a person licensed under this chapter.

(b) If a person certified to practice medicine in this State voluntarily resigns from the staff of a healthcare institution, or voluntarily limits that person's own staff privileges at a healthcare institution, or fails to reapply for hospital or staff privileges at a healthcare institution, the healthcare institution and the person shall promptly report in writing such conduct to the Board if the conduct occurs while the person is under formal or informal investigation by the institution or a committee thereof for any reason related to possible unprofessional conduct or possible inability to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness; or excessive use or abuse of drugs, pursuant to § 1731 of this title.

(c) Upon receiving a report pursuant to subsection (a) or (b) of this section, or on its own motion, the Board shall investigate any evidence which appears to show that the person reported is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness; or excessive use or abuse of drugs, pursuant to § 1731 of this title.

(d) When an investigation is necessary pursuant to subsection (c) of this section, the Executive Director, with the approval of the assisting Board members who must be or must include a physician and a public member when the investigation relates to the quality of medical care provided by a physician or to the competency of a physician to engage safely in the practice of medicine, has the authority to inquire from any organization which undertakes physician peer review or physician quality assurance evaluations whether or not there has been any peer review, quality assurance, or similar process instituted involving the physician under investigation. The Executive Director may, by subpoena, compel the production of a list of the medical records reviewed during the peer review process, a list of the quality assurance indicators, and/or a list of other issues which were the basis for the peer review, quality assurance, or similar process. The lists produced must identify each item with a unique medical identifier to replace the patient's name and specific identifying information. If necessary, after receiving the lists the Executive Director may, by subpoena, compel the production of the relevant medical records. However, the individual, hospital, organization, or institution shall remove the patient's name and specific identifying information from the records prior to complying with the subpoena. If, after having reviewed the records produced, an assisting physician Board member and an assisting public Board member consider it necessary, the Executive Director may, by subpoena, compel the production of the patient's name. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board's ability to protect the public interest. An individual, hospital, organization, or institution that furnishes information to the Board pursuant to a subpoena issued pursuant to this subchapter with respect to any patient is not solely by reason of furnishing the information liable in damages to any person or subject to any other recourse, civil or criminal.

(e) The Board shall promptly acknowledge all reports received under this section. Individuals or entities reporting under this section must be promptly informed of the Board's final disposition of the reported matters.

(f) Malpractice insurance carriers and insured persons certified to practice medicine in this State shall file with the Board a report of each final judgment, settlement, or award against the insured persons. A person not covered by a malpractice insurance carrier shall also file a report with the Board. A report required to be filed under this subsection must be made to the Board within 30 days of a final judgment, settlement, or award.

(g) An individual, institution, agency, or organization required to report under this section who does so in good faith is not subject to civil damages or criminal prosecution for reporting.

(h) The Executive Director shall initially review every report made to the Board under this subchapter. The Executive Director may defer the investigation of a report pending a reported licensee's evaluation and treatment for substance abuse or for physical or mental illness, provided sufficient safeguards exist to protect the licensee's patients and the public. Safeguards may include a verifiable, voluntary cessation of the practice of medicine or a limited or monitored practice. Upon completion of the reported licensee's evaluation and treatment, the Executive Director may resume investigation of the report pursuant to the requirements of this chapter. If the Executive Director determines that a deferral is warranted, the case shall be summarized and placed before the Board for its information.

(i) Pursuant to the authority conferred herein and by § 1713 of this title, the Board shall have the authority to impose a fine, not to exceed $10,000 for the first violation, and not to exceed $50,000 for any subsequent violation, on any person, any healthcare provider, any healthcare institution, and the Medical Society of Delaware for violation of any duty imposed by this chapter, and said fine shall be imposed pursuant to the procedures of this chapter.

(j) Upon receiving a complaint involving potential criminal conduct, the Board shall promptly report the complaint to appropriate law-enforcement agencies, including the Delaware Department of Justice.

67 Del. Laws, c. 159, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 15; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 358, § 2; 77 Del. Laws, c. 319, §§ 7, 8; 77 Del. Laws, c. 321, § 2; 77 Del. Laws, c. 325, §§ 7-9.;

(a) If the Executive Director and the President of the Board, or a member of the Board designated by the President to assist in an investigation concerning a person certified to practice medicine, determine after the investigation that a violation of this chapter or of regulations enacted pursuant to this chapter which warrants formal disciplinary action has not occurred, but that an act or omission of the person is a matter of concern and that the person's practice may be improved if the person is made aware of the concern, the Executive Director, with the concurrence of the President or the assisting Board member, may issue a nondisciplinary, confidential letter of concern regarding the person's act or omission.

(b) If a person certified to practice medicine receives a total of 3 letters of concern and/or letters of counseling pursuant to this section, the Executive Director may reasonably require a formal assessment of professional competency pursuant to § 1732(d) of this title to assess the person's continued ability to protect the health and safety of the person's present or prospective patients.

70 Del. Laws, c. 144, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 358, § 3; 77 Del. Laws, c. 325, § 11.;

(a) All complaints of unprofessional conduct, unauthorized practice of medicine, or medical malpractice shall be referred to the Division of Professional Regulation to be investigated. Complaints alleging potential sexual misconduct by a licensee should be afforded priority by the Division. The Division of Professional Regulation shall formulate charges, if circumstances warrant, by bringing a formal complaint against a person to whom a certificate to practice medicine or otherwise licensed or registered in this State has been issued.

(b) The Executive Director shall initiate investigations concerning inability to practice medicine with reasonable skill or safety to patients. The Executive Director with the Board president or the president's designee, shall, after reviewing the results of the investigation, determine whether the person to whom a certificate to practice medicine has been issued is able to practice medicine with reasonable skill and safety to patients, either on a restricted or unrestricted basis. If the Executive Director reasonably believes that a diagnostic mental or physical examination of the person under investigation is necessary, the Executive Director shall order the person to submit to an examination at the person's expense to be conducted by a physician or agency designated by the Executive Director. Every person to whom a certificate to practice medicine has been issued is deemed to have given that person's own consent to submit to a diagnostic mental or physical examination when so directed by the Executive Director, and to have waived all objections to the admissibility of the examination report to the Board. A person who submits to a diagnostic mental or physical examination as ordered by the Executive Director has the right to designate another physician to be present at the examination and to submit an independent report on the examination to the Board.

(c) To assist in an investigation of alleged unprofessional conduct, or medical malpractice, or of inability to practice medicine with reasonable skill or safety to patients, the Executive Director, on behalf of the Board, may, by subpoena, compel the production of necessary patient medical records of and patient medical records reviewed by all hospitals, organizations, and healthcare institutions located in the State and by all quality assurance, peer review, and other similar committees, including the records of the Medical Society of Delaware and its committees. A subpoena issued under this subsection is subject to the subpoena restrictions in § 1731A(d) of this title. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board's ability to protect the public interest.

(d) In addition to or in lieu of a diagnostic evaluation, the Executive Director may require an applicant for or the holder of a certificate to practice medicine, at the applicant or certificate holder's expense, to complete a formal assessment of professional competency if the Executive Director, after consultation with the President of the Board and at least 1 other physician member of the Board, determines that a formal assessment is warranted to protect the health and safety of present or prospective patients. A formal assessment must be performed by the assessment center established by the Federation of State Medical Boards and the National Board of Medical Examiners, or by another assessment center as the Executive Director directs. A formal assessment may not be required of an applicant or certificate holder by the Executive Director without the written concurrence of the President of the Board and at least 1 other physician member of the Board that the assessment is warranted pursuant to this subsection.

(e) When a complaint is made by a law-enforcement agency or employee thereof and involves allegations of criminal activity, the Division of Professional Regulation and the Executive Director shall suspend any new or pending investigation upon a written request to do so by the Delaware Department of Justice or a federal law-enforcement authority. Such written request shall suspend the duty to investigate pursuant to this section, duty to regularly advise the complainant pursuant to § 1733(a)(2) of this title and any other duties that would interfere with the ability of law enforcement to investigate the allegations successfully. The suspension shall remain in effect until the Delaware Department of Justice or federal law enforcement informs the Executive Director in writing that action by the Division of Professional Regulation will not interfere with a pending law-enforcement investigation.

60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 327, § 2; 67 Del. Laws, c. 226, § 12; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, §§ 16-19; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 325, §§ 10, 11.;

(a)(1) Any member of the public or of the Board, or the Executive Director may file with the Board a complaint concerning any aspect of the practice of medicine against a person to whom a certificate to practice medicine in this State has been issued or any other person with a duty imposed by this chapter.

(2) The Executive Director shall advise the complainant of the progress of the case at least every 90 days until the case is resolved.

(3) The Executive Director shall communicate with the Delaware Department of Justice, at least monthly, regarding the status of complaints filed by law enforcement, and shall report the case status to the Board only if the case is no longer subject to suspension pursuant to § 1732(e) of this title.

(b) The Executive Director shall investigate in accord with the procedures set forth in § 1732 of this title each complaint which appears to be valid and well-founded.

(c) The Executive Director may maintain the confidentiality of the complaining party or the respondent from the Board. In the absence of an Executive Director or acting Executive Director, the Secretary of State may exercise that discretion.

(d) After investigation, if the Executive Director elects to file a formal written complaint against a respondent, the person must be served personally or by certified mail, return receipt requested, with a copy of the complaint not less than 20 days nor more than 60 days prior to a hearing on the complaint. A formal written complaint under this subsection must describe in detail the allegations upon which the complaint is based.

(e) A notice of hearing must inform the person of the date, time, and place of the hearing; state the statute or regulation allegedly violated and the statutory or regulatory authority which gives the Board authority to act; state that the person has a right to be represented by counsel at the hearing and to present evidence on the person's own behalf; and inform the person that the Board must base its decision solely upon evidence received at the hearing. The person is entitled to file with the Board a written response to the complaint within 20 days of service or of receipt by certified mail of the complaint.

(f) A complaint of the unauthorized practice of medicine must be reported immediately to the Attorney General. A person who files a complaint with or provides information to the Board concerning a violation of this chapter is not liable in any cause of action arising out of the filing of the complaint or the providing of information, provided that the person does so in good faith and without gross or wanton negligence.

(g) The Office of the Attorney General shall provide legal services to the Board, its committees, and the Executive Director.

60 Del. Laws, c. 462, § 1; 64 Del. Laws, c. 327, § 3; 67 Del. Laws, c. 226, § 13; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 20; 75 Del. Laws, c. 88, § 17(2); 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 10; 77 Del. Laws, c. 321, §§ 3-5; 77 Del. Laws, c. 325, §§ 12, 13.;

(a) Procedure.

(1) Upon the mailing of a formal complaint by the Executive Director pursuant to this chapter, the Executive Director shall appoint an examiner pursuant to § 1713 of this title or a hearing panel composed of 3 unbiased members of the Board, the 3 members being 2 physician members and 1 public member if practical, who shall hear the evidence concerning the alleged charges. The hearing panel shall convene to hear the evidence no more than 90 days after the Board accepts a formal complaint unless the hearing panel, in its discretion, grants a continuance of the hearing date. All evidence at the hearing must be taken under oath or affirmation, but technical rules of evidence do not apply. After the evidence has been heard by the hearing panel, the panel may convene in executive session for consideration of the evidence presented at the hearing and for purposes permitted by § 10004 of Title 29, and shall make written findings of fact, conclusions of law, and a recommendation for a proper disciplinary action, if 1 is warranted. Only evidence presented at the hearing may be considered by the hearing panel in reaching its findings of fact and conclusions of law. The findings of fact made by the hearing panel are binding on the parties appearing before it and on the Board. If the hearing panel finds that the allegations made in the complaint are not supported by the evidence, it shall so indicate to the Board, together with its recommendation that no further action be taken and that the person complained about be exonerated of all charges. If a majority of the members of the Board who consider the matter, excluding members who participated in the investigation of the complaint and members on the hearing panel and members who are otherwise biased, vote to accept the hearing panel's conclusions of law and recommendation, no further proceedings may be held before the Board. However, if a majority of the members of the Board who consider the matter, excluding any members who participated in the investigation of the complaint and members on the hearing panel and members who are otherwise biased, vote to reject the hearing panel's conclusions of law and recommendation, a formal hearing must be held before the Board to enable the Board to make its own conclusions of law and determine what discipline, if any, should be imposed. In such a case, the hearing panel's findings of fact are binding upon the Board.

(2) If the hearing panel finds that any of the factual allegations made in the complaint are supported by the evidence it has considered, the Board, excluding members who participated in the investigation of the complaint and members on the hearing panel and members who are otherwise biased, will consider the findings of fact and conclusions of law made by the hearing panel at a formal hearing.

(3) A formal hearing must be held within 90 days after the issuance of the written findings of facts and conclusions of law of the hearing panel pursuant to this subsection; provided, however, that if the hearing panel finds that the person complained about presents a clear and imminent danger to the public health by that person's continued practice of medicine, then the full Board may meet for the formal hearing as soon as possible, but only upon 3 days' written notice of the formal hearing being provided to the person or to that person's attorney. No less than 7 affirmative votes are necessary in order for disciplinary action to be taken by the Board. Upon reaching its conclusions of law and determining the appropriate disciplinary action, if any, the Board shall issue a written decision and order in accordance with § 10128 of Title 29. The decision and order must be signed by the Board's President, or, if the President is not available, by another officer of the Board.

(b) Open hearings. — A hearing on a complaint conducted by a hearing panel or examiner is open to the public, except the Board may conduct executive session for deliberations and purposes permitted by § 10004 of Title 29. A formal hearing on a complaint before the Board is open to the public in accordance with the provisions of § 10004 of Title 29.

(c) Transcript of proceedings. — A stenographic transcript must be made of the formal hearings of the Board and of the hearings of the Board's hearing panels or examiner. The person complained about is entitled, upon that person's own request, to obtain a copy of the transcript at the person's own expense.

(d) Rights of respondent. — The person complained about is entitled to be represented by counsel before a hearing panel or examiner and before the Board. The person complained about also has the right to cross-examine witnesses against the person, the right to present that person's own witnesses, and the right to introduce evidence at the hearing. In addition, the person complained about has the right to compel the issuance of a subpoena for the attendance of witnesses to appear and testify or for the production of books, records, or other documents at the hearing.

(e) Conduct of hearing before the hearing panel. — An attorney from the Office of the Attorney General shall present evidence in support of the allegations contained in the formal complaint. The attorney may call witnesses and cross-examine any witnesses called on behalf of the person complained about. A member of the Board who participated in the investigation of the complaint under consideration or a member who is biased may not sit on the hearing panel or take part in the deliberations or decisions of the hearing panel. To find that a fact or allegation is supported by evidence, the panel members must unanimously agree. The hearing panel shall make its findings of fact and conclusions of law based solely upon the evidence presented to it at the hearing.

(f) Conduct of hearing before the examiner. — An attorney from the Office of the Attorney General shall present evidence in support of the allegations contained in the formal complaint. The attorney may call witnesses and cross-examine any witnesses called on behalf of the person complained about. The examiner may administer oaths, examine witnesses and receive evidence in any locality. The testimony or evidence so taken or received shall have the same force and effect as if taken or received by the Board, or by a hearing panel pursuant to §§ 1713(a)(15) and 1734 of this title. Upon completion of such hearing or the taking of such testimony and evidence, the examiner shall submit to the Board the examiner's findings and recommendations thereon, which findings and recommendations shall be considered by the Board and such action taken with respect thereto by the Board as it decides to be proper.

(g) Conduct of formal hearing before the Board. — The findings of fact made by a hearing panel on a complaint are binding upon the Board at a formal hearing on the same complaint. At a formal hearing, the Board may not consider additional evidence. The Board shall deliberate and reach its own conclusions of law based upon the findings of fact made by the hearing panel. The Board shall consider the hearing panel's conclusions of law, but is not bound by them. To adopt conclusions of law, 7 Board members must vote in favor of them. After adopting its conclusions of law, the Board shall determine what disciplinary action, if any, against the person complained about is appropriate, based solely upon the record before it. To impose disciplinary action, affirmative votes by the majority of the Board members who considered the matter, but in every case no less than 7 affirmative votes are necessary. The Executive Director, Board members who participated in the investigation of the complaint under consideration, the members of the hearing panel, and any Board members who are otherwise biased may not participate in the deliberations of the Board concerning a complaint investigated by the Executive Director.

(h) Written decision and order. — Upon reaching its conclusion of law and determining the appropriate disciplinary action, if any, the Board shall issue a written decision and order in accordance with § 10128 of Title 29. The order must restate the factual findings of the hearing panel, but need not summarize the evidence presented. However, notwithstanding the provisions of § 10128(c) of Title 29, the decision and order may be issued over the signature of only the President or other officer of the Board. The decision and order must be sent by certified mail, return receipt requested, to the person complained about, with a copy to the Executive Director.

(i) Upon receiving a decision and order pursuant to subsection (h) of this section, the Executive Director shall file the required disciplinary action reports to data banks.

60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 7; 64 Del. Laws, c. 327, § 4; 64 Del. Laws, c. 477, § 6; 65 Del. Laws, c. 66, § 1; 67 Del. Laws, c. 226, § 14; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 21; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 321, § 6; 77 Del. Laws, c. 325, §§ 15-19.;

(a) If the Board determines pursuant to this subchapter that a fine and/or the restriction, suspension, or revocation of a certificate to practice medicine and/or any other disciplinary action or other action is warranted, an order describing the Board's action must be served personally or sent by certified mail, return receipt requested, to the certificate holder. In addition, copies of the order must be filed in the office of the Board, in the Division of Professional Regulation, in the Division of Public Health of the Department of Health and Social Services, and with the Director of Revenue. Upon receipt of an order of the Board revoking or suspending a certificate to practice medicine, the Director of Revenue shall forthwith revoke or suspend the occupational license to practice medicine issued by the Director and comply with any terms of the order applicable to the Division of Revenue.

(b) The Director of Revenue may not issue an occupational license or a license renewal to any person whose certificate to practice medicine has been revoked or suspended by the Board, unless issuance is in conformity with the terms and conditions of the order of revocation or suspension, or in conformity with any order of reinstatement issued by the Board, or in accordance with a final judgment in any proceeding for review instituted under this chapter.

60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 6; 67 Del. Laws, c. 226, § 15; 71 Del. Laws, c. 102, §§ 22, 23; 75 Del. Laws, c. 141, § 1.;

(a) A person against whom a decision of the Board has been rendered may appeal the decision to the Superior Court in the county in which the offense occurred.

(b) An appeal pursuant to this section must be filed within 30 days after the day the written decision and order of the Board is issued.

(c) An appeal pursuant to this section is on the record of the Board hearing, without a trial de novo.

(d) A Board action revoking, suspending, or otherwise restricting a person's certificate to practice medicine is not stayed upon appeal unless so ordered by the Superior Court.

(e) A person whose certificate to practice medicine has been suspended or otherwise restricted may, after the expiration of 90 days from the decision of the Superior Court, or of the Supreme Court if the decision of the Superior Court is appealed, or after 90 days from the decision and order of the Board if no appeal is taken, apply to the Board to have the certificate reinstated or reissued for good cause shown.

60 Del. Laws, c. 462, § 1; 67 Del. Laws, c. 226, § 16; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1.;

Release of records of the Board is governed by the provisions of the Freedom of Information Act, Chapter 100 of Title 29.

60 Del. Laws, c. 462, § 1; 67 Del. Laws, c. 226, § 17; 75 Del. Laws, c. 141, § 1.;

(a) In the event of a formal or informal complaint concerning the activity of a person certified to practice medicine that presents a clear and immediate danger to the public health, the Board may temporarily suspend the person's certificate to practice medicine, pending a hearing, upon the written order of the Secretary of State or the Secretary's designee, with the concurrence of the Board President or the Board President's designee. An order temporarily suspending a certificate to practice medicine may not be issued unless the person or the person's attorney received at least 24 hours' written or oral notice before the temporary suspension so that the person or the person's attorney can file a written response to the proposed suspension. The decision as to whether to issue the temporary order of suspension will be decided on the written submissions. An order of temporary suspension pending a hearing may remain in effect for no longer than 60 days from the date of the issuance of the order unless the temporarily suspended person requests a continuance of the hearing date. If the temporarily suspended person requests a continuance, the order of temporary suspension remains in effect until the hearing panel convenes and a decision is rendered.

(b) A person whose certificate to practice medicine has been temporarily suspended pursuant to this section must be notified of the temporary suspension immediately and in writing. Notification consists of a copy of the complaint and the order of temporary suspension pending a hearing personally served upon the person or sent by certified mail, return receipt requested, to the person's last known address.

(c) A person whose certificate to practice medicine has been temporarily suspended pursuant to this section may request an expedited hearing. The Board shall schedule the hearing on an expedited basis, provided that the Board receives the request within 5 calendar days from the date on which the person received notification of the decision to temporarily suspend the person's certificate to practice medicine.

(d) As soon as possible after the issuance of an order temporarily suspending a person's certificate to practice medicine pending a hearing, the Board shall appoint a 3-member hearing panel consisting of 2 physician members and 1 public member of the Board if practicable. After notice to the person pursuant to subsection (b) of this section, the hearing panel shall convene within 60 days of the date of the issuance of the order of temporary suspension to consider the evidence regarding the matters alleged in the complaint. If the person requests in a timely manner an expedited hearing, the hearing panel shall convene within 15 days of the receipt of the request by the Board. The 3-member panel shall proceed to a hearing in accordance with the procedures set forth in § 1734 of this title and shall render a decision within 30 days of the hearing.

(e) In addition to making findings of fact, the hearing panel shall also determine whether the facts found by it constitute a clear and immediate danger to public health. If the hearing panel determines that the facts found constitute a clear and immediate danger to public health, the order of temporary suspension must remain in effect until the Board, pursuant to § 1734(g) of this title, deliberates and reaches conclusions of law based upon the findings of fact made by the hearing panel. An order of temporary suspension may not remain in effect for longer than 60 days from the date of the decision rendered by the hearing panel unless the suspended person requests an extension of the order pending a final decision of the Board. Upon the final decision of the Board, an order of temporary suspension is vacated as a matter of law and is replaced by the disciplinary action, if any, ordered by the Board.

66 Del. Laws, c. 2, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 24; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, §§ 5, 6; 77 Del. Laws, c. 325, § 19.;

Pursuant to the State Early Opt-in provision of 42 U.S.C. § 11111(c)(2), the protection from liability set forth in 42 U.S.C. § 11111(a) applies to professional review actions, as defined in 42 U.S.C. § 11151, commenced on or after Sept. 10, 1988.

66 Del. Laws, c. 357, § 1; 75 Del. Laws, c. 141, § 1.;

(a) Definitions.

(1) "Direct access" means the opportunity to have personal contact with persons receiving care during the course of one's assigned or professional duties.

(2) "Health care facility" means any custodial or residential facility or other facility where health, nutritional or personal care is provided for persons including nursing homes, assisted living facilities, long-term care facilities, hospitals, health care agencies, birth centers, emergency centers, surgical centers, and adult and child day care facilities. This term also includes any business, professional association, or other business entity where 2 or more physicians practice together.

(3) "Person seeking certification" means any person seeking an initial certificate to practice medicine from the Board of Medical Licensure and Discipline.

(b) Service letter.

(1) The Board of Medical Licensure and Discipline shall not issue a certificate to practice medicine without first obtaining 1 or more service letters regarding the applicant, provided that person has previously practiced medicine. The service letter obtained must include a service letter from all health care facilities where that person currently has direct access to patients, and where that person has admitting or staff privileges. In addition, if a person seeking certification had direct access to patients or staff or admitting privileges at a health care facility within the past 3 years, the Board of Medical Licensure and Discipline shall also obtain a service letter from each such facility. If a person seeking certification has not previously had direct access to patients or was self-employed or 1 or more of the health-care facilities where that person had direct access to patients no longer exists, then the Board must require the person to provide letters of reference from 2 physicians who are familiar with the person, but who are not relatives of the person.

(2) For purposes of this subsection, the required service letter shall be in a form provided by the Board of Medical Licensure and Discipline. Notwithstanding any law or provision to the contrary, the form shall be signed by a responsible physician at the current or previous health care facility and shall contain information about the scope of that persons practice and relationship to the facility, the duration of that relationship, and any reasonably substantiated incidents involving violence, threat of violence, abuse, or neglect by the person seeking certification toward any other person, including any disciplinary action taken as a result of such conduct.

(3) Any health care facility that is required to provide a service letter for the purpose stated above shall obtain a statement signed by the person seeking certification wherein the person authorizes a full release permitting the Board of Medical Licensure and Discipline to obtain any and all information pertaining to the facts of the person's current or previous relationship with the facility.

(4) In addition to the requirements of § 1720 of this title, the Board shall obtain a statement signed by the person seeking certification wherein the person attests that the information provided regarding current and past relationships to health care facilities represent a full and complete disclosure of the person's current and previous contacts with health care facilities. Any person seeking certification who fails to make a full and complete disclosure of such information shall be subject to a civil penalty of $5,000. Any person who wilfully fails to make a full and complete disclosure shall not be issued a certificate to practice medicine.

(5) Any health care facility receiving the Board's written request for a service letter shall provide the service letter within 10 business days from the day the request is received. Any health care facility that fails to make a full and complete disclosure of information, pursuant to this section and § 1730(b)(1)c. of this title, as required, shall be subject to a civil penalty of $10,000 for each such violation.

(6) Any health care facility providing information about a person seeking licensure as required by this section shall be immune from claims, suits, liability, damages, or any other recourse, civil or criminal, so long as the person acted in good faith and without gross or wanton negligence; good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.

(7) The requirements of this section shall be in addition to any requirements of § 708 of Title 19.

(8) The Division of Professional Regulation shall investigate and seek civil penalties against persons seeking certification and health care facilities that violate the provision of this section.

(9) Notwithstanding the foregoing, the Board may issue a certificate to practice medicine to an applicant who was employed out of State or country within the past 5 years, where completed service letters have not been received from all health care facilities, provided all other requirements of this chapter are met and provided requests were made to such facilities and the Board determines that all possible efforts were made to obtain the required service letter. Applicants to which this paragraph applies shall obtain letters of reference from 2 qualified physicians who are familiar with the person, who are not relatives of the person.

77 Del. Laws, c. 460, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 194, § 2.;

(a) A person certified or licensed under this chapter may be disciplined by the Board for maintaining a facility in an unsanitary or unsafe condition, by means of levying a fine, or by the restriction, suspension, or revocation, either permanent or temporary, of that person's certificate or license, or by other appropriate action, which may include a requirement that a person who is disciplined must complete specified continuing education courses. For purposes of this section, "facility" shall have the same meaning as defined in § 122(3)y.3.C. of Title 16.

(b) The Division shall have the authority to conduct inspections upon receipt of any complaint in connection with subsection (a) of this section or upon the occurrence of an adverse event as defined in § 122(3)y.3.A. of Title 16 and, as applicable, to refer such information to the Department of Health and Social Services pursuant to § 122(3)y. of Title 16. In connection herewith, the Division may share information with the Department of Health and Social Services in accordance with applicable law.

78 Del. Laws, c. 15, § 2.;